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PETITIONER: KAMESHWAR PRASAD

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT11/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (6)  44        JT 1995 (9)   612  1995 SCALE  (5)466

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.  He have  heard learned  counsel on both sides.      Admittedly, the  appellant was  appointed as Vaccinator in a  Small Pox  Eradication Programme  on May  6, 1975. The scheme was  disbanded in  1985. Thereafter,  a decision  was taken on  November 14,  1986 to retain 25 per cent of senior officers  and  to  absorb  the  remaining  75  per  cent  in equivalent posts  in regular  cadres. In  consequence, while awaiting his absorption, the appellant filed CWJC No.2412/90 for a  direction to consider his case. Accordingly, the High Court by  order dated  January 22, 1991 directed the Medical Officer to  consider his  case. A representation was made by the appellant  to consider  him for  promotion as  a  clerk. Consequently, the  District Medical  Officer promoted him on May 7, 1991 as a clerk and he joined as such on May 9, 1991. The District  Medical Officer  had stated  in the  letter of appointment that  his promotion  would  be  subject  to  the confirmation by the Director-in-Chief.      The Director-in-Chief in his proceedings dated December 10, 1992  cancelled the appointment following the Resolution No.2215 dated  February 11,  1985. It  was stated there that any promotion  made  would  be  subject  to  the  policy  of confirmation  according   to  the  rules  on  the  basis  of seniority-cum-fitness   and    also   observing    rule   of reservation. Since  the appointment of the appellant was not made in  pursuance of  the resolution,  it was observed that the appellant  was not  properly appointed as clerk. When he filed the  CWJC No.13022/92,  by its order dated February 2, 1993 the High Court dismissed the same and a review petition filed subsequently  was also  dismissed on  January 4, 1994. Thus this appeal by special leave.      Though the  learned councel for the appellant contended that the District Medical Officer is the competent authority

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to appoint  a clerk, he is required to follow the principles laid down in Resolution No.2215 dated February 11,1985, even if he  be the appointing authority. Indisputably, he did not follow the  procedure. The  appellant was really required to be absorbed in an equivalent post because he was found to be a  surplus  Vaccinator.  The  equivalent  post  is  that  of Vaccinator in  other departments. Therefore, on the basis of his order  in the merit of surplus employees, he is required to be  absorbed. As  soon as  his turn  comes, the competent authority is  directed to  absorb him.  On  his  absorption, according to  the said resolution and the entitlement on per with other  candidates, his  case would  be  considered  for promotion as  clerk. Since  the appellant has already worked from May  8, 1991  till December  10, 1992  as clerk,  he is entitled to  salary attached  to the  post of  clerk for the said period.      The appeal  is accordingly  allowed to the above extent but, in the circumstances, without costs.